PRELIMINARY COMMENTS OF EDWARD HASBROUCK

The Notice cites 49 U.S.C. 114, 44901, and 44903 as authority for creation
and maintenance of the proposed PASSR system of records.
As I pointed out in my comments on the Department of Transportation's
previous proposal for the ASSR system of records, 49 U.S.C. 44901 (h) (2)
provides that the Under Secretary (of Transportation) "shall advise
Congress of a regulation to be prescribed under this section at least 30
days before the effective date of the regulation, unless the Under
Secretary decides an emergency exists requiring the regulation to become
effective in fewer than 30 days and notifies Congress of that decision."
(Proposed system of records DOT/TSA 010, "Aviation Security Screening
Records"; docket number OST-1996-1437; my comments are at docket number
OST-1996-1437-81; also available at
http://hasbrouck.org/articles/Hasbrouck_DOT_comments-23FEB2003.pdf)

To the extent that, as in this Notice, the DHS asserts regulatory
authority inherited from the DOT and derived from this section, this
statutory Congressional notice requirement applies to the DHS/TSA, just as
it did to the DOT.

The Notice published in the Federal Register contains no evidence that
prior notice has been provided to Congress. Assuming, arguendo, that the
publication of this Notice on 1 August 2003 constitutes in and of itself
the requisite notice to Congress, the effective date of the Notice must be
postponed until no earlier than 30 days after the date of publication,
which would be 31 August 2003.

The claims in the Notice that it is effective immediately as of the date
of publication, and that it authorizes the immediate creation and use for
testing or any other purpose of the system of records it describes, are,
on their face, directly contrary to the plain language of 49 U.S.C. 44901,
the statute claimed as authority for the Notice.

Accordingly, the Notice must be withdrawn, and may not be used as
authority for the creation or use of the PASSR system of records.
If any changes are made to the Notice, they must be republished, with an
effective date no less than 30 days after their publication in final form
and notification to Congress; or the Notice must be modified to remove all
those portions for which statutory authority is claimed under 49 U.S.C.
44901.

The failure of the DHS and TSA to observe the statutory requirement for 30
days' notice to Congress, and the issuance of a facially invalid Notice
for this system of records, are particularly significant in light of the
current status of Congressional oversight of the CAPPS-II program for
which the PASSR is designed. Multiple measures -- any one of which, if
approved, would prohibit or postpone CAPPS-II testing and/or deployment
until additional reporting or other criteria are satisfied -- are pending
in both the House and Senate. One such measure has already advanced as far
as inclusion in the House-Senate conference committee recommendation on a
pending bill. There is substantial evidence that, given the statutorily
mandated 30 days' notice, Congress might exercise its authority to take
action during that time that would alter or remove the DHS and TSA
authority to proceed with the creation or use of this system of records.
Should the Notice not be withdrawn, I reserve the right to submit further
comments, within the specified public comment period, concerning other
aspects of the Notice of the proposed PASSR system of records.
According to the DHS public statement announcing the publication of the
Notice, "DHS will make the comments available online at www.dhs.gov."
http://www.dhs.gov/dhspublic/display?content=1115

I look forward to seeing these and all other comments on this docket made
available promptly at that address.